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Michael Flynn Argues He's Different From The Other Mueller Defendants Who Lied And Went To Prison

Special counsel Robert Mueller's office previously said it was okay with Flynn getting a sentence that didn't involve time behind bars.

Last updated on December 12, 2018, at 1:05 p.m. ET

Posted on December 11, 2018, at 10:45 p.m. ET

Aaron P. Bernstein / Getty Images

Michael Flynn leaves the federal courthouse in Washington on July 10, 2018.

WASHINGTON โ€” Michael Flynn, the former national security adviser to President Trump who pleaded guilty to lying to the FBI, filed papers Tuesday night asking a judge for no prison time, arguing that his case is different from other defendants in the Russia probe who pleaded guilty to the same crime and spent time behind bars.

Flynn's request wasn't a surprise, since special counsel Robert Mueller's office last week told the judge in Flynn's case that it was comfortable with a sentence that didn't involve any prison time. Prosecutors cited Flynn's "substantial assistance" to the government.

The judge is still free to send Flynn to prison โ€” the advisory guidelines in his case are between zero and six months' incarceration โ€” but the fact that prosecutors aren't asking for that gives him better odds going into sentencing.

Flynn is scheduled for sentencing on Dec. 18 before US District Judge Emmet Sullivan. He'll become the fifth person sentenced in connection with criminal charges that came out of the special counsel investigation. Flynn pleaded guilty in November 2017 to lying to FBI agents about his communications in 2016 with then-Russian ambassador Sergey Kislyak.

In the sentencing memo filed Tuesday, Flynn's lawyers strove to distance their client from the two other Mueller probe defendants who, like Flynn, pleaded guilty to lying to investigators and were then sentenced to prison โ€” former Trump campaign adviser George Papadopoulos, who recently finished a 12-day stint in a minimum-security correctional institution, and Dutch lawyer Alex van der Zwaan, who spent 30 days in prison.

Van der Zwaan is a "trained attorney," Flynn's lawyers wrote. They pointed out that the special counsel investigation was well underway by the time van der Zwaan was interviewed and gave false statements, whereas Flynn was interviewed by FBI agents in January 2017, several months before Mueller was appointed. Flynn's lawyers wrote that while van der Zwaan was warned in his interview that it was a crime to lie to the FBI, that didn't happen when Flynn was interviewed โ€” according to information that Flynn's lawyers said they were given by the government. FBI agents said they didn't give that warning to Flynn because they wanted him to be relaxed.

"One of the agents reported that General Flynn was 'unguarded' during the interview and 'clearly saw the FBI agents as allies,'" Flynn's lawyer wrote, quoting from materials they received from the government.

Flynn's lawyers wrote that Papadopoulos, too, was given warnings before he spoke with the FBI. They noted that Papadopoulos didn't initially come clean, and they wrote elsewhere in the sentencing memo that Flynn's "respect for the law is demonstrated by his decision to accept responsibility for his actions soon after the Special Counselโ€™s Office reached out to him and sought his cooperation."

Flynn's lawyers highlighted his long career in the military and in public service, and his "timely and substantial assistance to law enforcement." They said he'd spent nearly 63 hours participating in 19 meetings with the special counsel's office and other government offices, and had produced electronic devices and thousands of documents.

"We cannot say it any better than the Special Counselโ€™s Office has: Given all the circumstances, 'a sentence at the low end of the guideline range โ€” including a sentence that does not impose a term of incarceration โ€” is appropriate and warranted,'" Flynn's lawyers wrote, quoting from the special counsel office's sentencing memo.

CORRECTION

Michael Flynn will become the fifth person sentenced in connection with the Mueller investigation. A previous version of this story incorrectly stated he would be the fourth person sentenced.

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